Steve Chapman: Same-sex marriage no threat to freedom

One
reason Americans have moved so rapidly toward support of same-sex marriage is
their stubborn bias toward liberty. When interest groups demand something
material, or when they seek to take something from other groups, the public is
apt to resist. But when a group asks to live and let live, it can usually count
on getting its way.

Legal
scholars have long thought that if the Supreme Court upheld same-sex marriage,
it would base that decision on the 14th Amendment’s guarantee of “the equal
protection of the laws.” When Justice Anthony Kennedy made the case for
overturning the Defense of Marriage Act, though, he relied on a different
provision. DOMA, he wrote, “is a deprivation of an essential part of the liberty
protected by the Fifth Amendment.”

The right
to marry a person of the same sex fits perfectly within Thomas Jefferson’s
conception of freedom. “It does me no injury for my neighbor to say there are
twenty gods or no God,” he wrote. “It neither picks my pocket nor breaks my
leg.”

The
beauty of gay marriage is that it grants something to one group that doesn’t
come at the expense of anyone else. Heterosexual rights are undisturbed.
Straight people could marry before any state legalized same-sex matrimony, and
likewise after.

That fact
explains why so many non-gays have come to embrace the idea. But it presents a
high hurdle for opponents of same-sex marriage. Even Americans who have moral
qualms about it may not think the law should try to dictate morality.

After
all, the Supreme Court said in 2003 the Constitution protects the freedom of
adults to engage in sodomy — a decision that conservatives spent five minutes
denouncing and never mentioned again. It’s a small step from saying people
should be free to have sex with whomever they want to saying they should be
free to marry whomever they choose.

So how
did staunch opponents of gay rights react to the decisions striking down DOMA
while upholding marriage equality in California? By claiming that it would
trample on their rights.

Thomas
Peters, the communications director for the National Organization for Marriage,
told me, “Same-sex marriage and religious freedom don’t coexist very well. In
fact, they probably are mutually exclusive.”

Bryan
Fischer of the American Family Association called the DOMA verdict “the
greatest threat to the First Amendment in history.” The Liberty Institute said
the rulings will mean “attempts to use government to punish those who disagree”
and “create a climate of fear and oppression.”

It’s a
bit rich for these groups to complain that the court is infringing on their
freedom to infringe on the freedom of gays. Advocates of same-sex marriage are
not trying to exclude heterosexuals from matrimony. They are only asking to be
free to practice it, as well.

But
opponents charge that churches will be forced to host same-sex weddings and
their clergy will be required to perform them. Churches that refuse, they say,
may be stripped of their tax-exempt status.

The
likelihood that any of these fears will come to pass ranges from minimal to
zero. State laws allow divorce, but Catholic priests haven’t been forced to
preside at the weddings of divorced Catholics. Employment discrimination laws
haven’t been applied to end bans on female clergy. Nor have such internal
church polices led to the loss of standard tax exemptions.

The only
real friction comes in areas where religious institutions provide public
accommodations or act as agents of government. A Methodist organization in New
Jersey lost a special tax break for an open-air pavilion after it refused to
let a lesbian couple use it for a civil union ceremony. Catholic Charities
abandoned the adoption business in Illinois rather than work with same-sex
couples in civil unions.

Those
cases may represent good or bad policy, but they’re not a new thing. A hotel
owner who objects to integration on religious grounds can’t bar access to
blacks. An organization taking state money for state contracts has to comply
with state policies. Lawmakers will have plenty of these peripheral issues to
argue about, but the idea that believers will suffer rank oppression is a
fantasy.

The only
liberty they will lose is the liberty to deprive others of their liberty.
Sorry, but that’s one freedom a free society doesn’t offer.

STEVE CHAPMAN’S column is distributed by
Creators Syndicate Inc.

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